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Playing the Trump card

The abrupt dismissal of 46 State Attorneys, including the highly regarded US Attorney for the Southern District of New York, Preet Bharara, sends shockwaves through the United States Department of Justice, and beyond.

The Attorney General of the United States, the Republican former Alabama senator, Jeff Sessions, dismissed the remaining 46 of the 93 presidentially appointed United States Attorneys, according to an announcement made on Friday.

The order came following an earlier exodus of Obama-era appointments, many of which have been covered by CDR, from DoJ offices across the US, with New York and Washington, DC being especially prominent in the turnover, while also including significant states such as Colorado, for example.

In a statement, a spokesperson said: “As was the case in prior transitions, many of the United States Attorneys nominated by the previous administration already have left the Department of Justice.”

They added: “The Attorney General has now asked the remaining 46 presidentially appointed Attorneys to tender their resignations in order to ensure a uniform transition.”

While the appointees serve at the pleasure of the President, it is unusual for a sitting president to dismiss all the current appointees summarily with so little notice.

US media reports recalled that, while Bill Clinton had dismissed the entire cadre of US attorneys on entering office in 1993, he allowed an extended handover period to manage the transition between exiting and arriving officials, while Barack Obama allowed for a blended transition between appointments, even choosing to retain some Bush-era appointments during his tenure.

The vast majority of the US Attorneys accepted their notice of resignation, some using the intervening time to pen short valedictory messages of departure, prior to returning to private practice, but one – the US Attorney for the Southern District of New York – did not.

The New YorkTimes reported that, In November, following a meeting at Trump Tower with the president-elect, Bharara told reporters he was asked by Trump and Sessions, to stay on in his post.

Bharara, according to US media, discussed the matter with Dana Boente, the acting Deputy Attorney General, who confirmed Bharara’s resignation, despite that earlier assurance, which Bharara interpreted as amounting to summary dismissal, an interpretation rejected by the Administration.

In a heavily publicised tweet, from his personal account, Bharara said: “I did not resign. Moments ago I was fired. Being the US Attorney in SDNY will forever be the greatest [honour] of my professional life.”

Bharara’s dismissal follows that of Sally Yates, who was dismissed as deputy attorney general by Trump following a row over the legality and constitutionality of controversial executive orders over US immigration policy, which orders were subsequently stayed by the US appellate courts.

In response, the DoJ said: that “I can confirm that Mr Bharara is no longer the US attorney for the Southern District of New York.”

STAYING WITH TEAM TRUMP

Both Boente, who is the US Attorney for the Eastern District of Virginia, and who is also serving as acting deputy attorney general, and Rod Rosenstein, the US Attorney for Maryland, who is the nominee for deputy attorney general, submitted their resignations, which were refused.

“The president called Dana Boente and Rod Rosenstein to inform them that he has declined to accept their resignation, and they will remain in their current positions,” said a DoJ spokesman.

Both men await Senate confirmations of their respective roles, as will the new US attorneys. The affair, however, raises wider questions. The dismissals may be within the purview of the President, but the sudden and peremptory nature of their execution does not suggest a planned approach to appointments.

While the President (and by extension, Sessions) has the power to remove US attorneys at will, such appointees are supposed to be politically independent, and protocols exist to prevent direct presidential engagement with prosecutors.

By convention, they are not dismissed in a bloc during a president's term; by law, CDR understands, the offices should not remain unfilled for a maximum of 120 days before nominating a successor, there are clear implications for the administration of justice.

MARKET REACTION

In a statement, the ranking Democratic senator on the Judiciary Committee, Senator Dianne Feinstein, said: “In January, I met with Vice President Pence and White House Counsel Donald McGahn and asked specifically whether all US attorneys would be fired at once,” she said.

“Mr McGahn told me that the transition would be done in an orderly fashion to preserve continuity. Clearly this is not the case. I’m very concerned about the effect of this sudden and unexpected decision on federal law enforcement,” she concluded.

Speaking to the National Law Journal, newly appointed Linklaters partner Matthew Axelrod, the former principal associate deputy attorney general, who left at the same time as Yates, called the peremptory nature of the dismissals “unusual, and unprecedented”, in confirming the transition team had recommended avoiding a mass dismissal of sitting US attorneys at one time.

He added: “Doing it on such short notice really deprived the offices of the ability to have a smooth transition. That's disruptive and was unnecessary.”

Notwithstanding the inevitable political changes to come, they said, “there is value in the gradual dismissal of US Attorneys as opposed to mass, abrupt dismissal”.

Their replacements will be Sessions’ people; speaking to CDR in January, Mark Leadlove, of Bryan Cave, said: “We would expect the current administration to appoint conservative, law and order, US Attorneys to office.”

Critics of Trump have suggested that leaving the offices open, even for a few months, would create a vacuum in law enforcement that those who have cause to fear it can exploit, particularly given a commensurate hiring freeze in more junior federal recruitment.

In January, Debevoise & Plimpton partner Andrew Levine noted that the “federal hiring freeze by President Trump might make it more difficult to ramp up enforcement”; that difficulty will be compounded by senior DoJ lawyers doing effectively two jobs.

With fears over the Trump Administration’s 'respect' for due process, a criticism shared by the International Bar Association, who called upon the President to respect the rule of law in February, citing his criticism of federal judges, the departures will do nothing to shore the image of Sessions as a troubled, and troubling, Attorney General.

Earlier this year, Sessions was forced to recuse himself from investigations into allegations regarding alleged Russian contacts with Trump’s presidential campaign, following bipartisan calls to do so, after questions arose as to his own contact with Russian diplomats.

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